United States v. Demarest

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12296 JUNE 10, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-60175-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGER DEMAREST,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 10, 2009)

Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,* District
Judge.

*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
PRYOR, Circuit Judge:

This appeal presents four issues about a conviction and sentence for money

laundering. After he sold a sailboat to two undercover law enforcement officers

who posed as narcotics traffickers, Roger Demarest was convicted of one count of

money laundering and acquitted of two other counts of the same offense.

Demarest argues that he was intoxicated and entrapped; prosecutorial misconduct

entitles him to a new trial; the district court delivered a coercive Allen charge; and

the district court erred when it calculated his sentence. These arguments fail.

When we review the evidence in the light most favorable to the government, the

record establishes that Demarest was a persistent and lucid salesman who was

eager to close the boat deal even though he knew that the agents’ purchase money

was illegal drug proceeds. Demarest failed to prove that any statements by the

prosecutor prejudiced him; the Allen charge was the pattern jury instruction, which

we have upheld as not being coercive; and the district court correctly applied the

Sentencing Guidelines. We affirm.

I. BACKGROUND

In June 2007, Demarest, a yacht broker in south Florida, was indicted on

three counts of money laundering that occurred during a sting operation in which

two undercover law enforcement officers posed as narcotics traffickers. The sting

2
operation commenced in 2005 and originally targeted William Pepper Rodda,

another yacht broker. Bruce Coleman, a federal revenue agent, posed as a money

launderer and financier for a drug smuggler, and Doug Peters, a Sarasota police

officer, posed as the boat captain for the drug smuggler. Coleman first met Rodda

in April 2005, and the pair met again, with Peters, in November 2005. Hurricane

Katrina and Coleman’s work on unrelated cases caused the delay between the

meetings. Because the agents asked to purchase a boat with cash and without

completing any paperwork, Rodda would not sell them a boat.

Rodda recommended that the agents contact Demarest, a friend of his, who

was the listed broker for a fifty-foot sailboat that might meet their needs. Although

the agents had not previously heard of Demarest, they followed Rodda’s

recommendation. The agents first met with Demarest in November 2005.

Demarest asked the agents where they planned to sail, and they told him

South America. The agents asked Demarest about the fuel capacity and radar

equipment of the boat, and Demarest became aware that they planned to use the

boat for an illicit purpose. Demarest offered to help the agents acquire the radar

equipment they needed.

When the three men began to discuss the purchase of the boat, the agents

stated that their boss would buy the boat only with cash. Although Demarest said

3
he “d[id]n’t like cash[,]” he agreed to accept cash if the agents would pay in

increments smaller than $10,000 to avoid “the IRS com[ing] down on [his] case.”

Coleman told Demarest that their boss’s name could not appear on the contract,

and Demarest advised the agents to form a Delaware corporation to purchase the

boat. The agents also inquired about the likelihood that the Coast Guard would

board the boat, and Demarest explained that the Coast Guard ordinarily boarded

powerboats, not sailboats.

Demarest’s awareness of the illicit nature of the agents’ business increased

as the meeting continued. The agents explained that they could not enter a contract

that day because their boss “can’t come in[to] the country right now.” Demarest

asked whether the boss was “a bad boy,” and the agents responded that “one of his

employees got popped and kind of rolled over on him” and that “[d]opers are

dopey and people are dopey.” Demarest told the agents that he “thought [he] was

smelling a little . . . whiff of that.” When Peters stated that he liked the boat

because it could haul a lot of “cargo,” Demarest responded that he “didn’t hear

that[,]” and Coleman stated that Peters “didn’t say ‘drugs,’ he said ‘cargo.’” Peters

stated that he had been “hauling dope on catamarans and . . . [couldn’t] get enough

on them to make.” Demarest again stated that the boat was fast, and he told the

agents about his own experience smuggling marijuana. Peters stated that “cocaine

4
is the thing here” and that he was interested in all of the spaces on the boat where

he could “put some kilos,” which were worth “eighteen thou” per kilo. Demarest

expressed interest in being a member of Peters’s crew, continued to boast about his

experience running drugs, and stated that he had never been stopped by the Coast

Guard, perhaps because he used women and children on board as distractions.

Coleman told Demarest that Rodda “was scared” of the agents, and

Demarest responded that Rodda had previously served time related to drug charges

and did not want to lose his brokerage license. Demarest also told the agents that

his “old lady snagged some of [Rodda’s] dope on [their] last run.” Demarest told

the agents that he would not tell Rodda that the agents were drug smugglers but

would share his commission with Rodda. Demarest stated that he could

distinguish federal agents from real drug runners by the kind of car agents drive

and that he was “in the same camp” as they were. After the agents exchanged

contact information with Demarest, they left and called Rodda to ask whether he

wanted to participate in the transaction. Rodda declined, and the Internal Revenue

Service terminated its investigation of him.

On November 11, 2005, Coleman called Demarest to say that his boss had

approved the boat purchase. The deal was postponed until later that month because

of Hurricane Wilma. On November 21, 2005, Coleman met Demarest at the yacht

5
sales company that Demarest owned, Parrot & Herst Yacht Sales, with $18,000 in

cash as a down payment. Coleman stated that his boss would pay the asking price

for the boat, $179,000. Demarest suggested that Coleman call the Delaware

corporation that would purchase the boat “Sand and Sea Charters[,]” and he

referred Coleman to a documentation company to establish the corporation.

Demarest explained that he ordinarily “just made up a name” for the individual

who formed the company.

During the same meeting, Demarest told Coleman that he had been “drunk

as a hoot” when he first showed the agents the boat and had “said more than [he]

ever wanted to say.” Demarest said he could not be a member of a smuggling crew

because he was “too old.” Coleman asked Demarest whether he had told the owner

of the boat that the purchasers were “in the dope business[,]” and Demarest said he

had not. Demarest expressed concern that Coleman was “in the federal business”

but proceeded with the arrangements for the deal. Demarest and Coleman agreed

that “it was imperative that neither of their names appear on a wire transfer to the

bank of funds in excess of $9,999[,]” and Demarest told Coleman to supply a name

and identification, “phony or not[,]” for the corporate documents. Demarest and

Coleman counted the $18,000, and Demarest told Coleman that he would probably

keep only $1,000 of his commission after paying debts. After the men counted the

6
money, Demarest provided Coleman the documents to establish the corporation

and told him how to “fudge this up.”

Eight days later, Coleman and Demarest spoke by telephone. Because

Coleman had not yet received approval for the cash he needed to complete the

transaction, he told Demarest that he needed to delay the deal because he had been

injured in a car accident. Over the next several days, Demarest left numerous

voice-mail messages for Coleman and suggested that he had another buyer for the

boat if Coleman was unable to complete the purchase. Demarest also told

Coleman that he would travel to Coleman’s bank in Hilton Head, South Carolina,

if that was necessary to close the deal.

On December 7, Coleman and Demarest again spoke by telephone.

Demarest told Coleman that he “really want[ed] to make this thing happen”

because he was “in the weeds” from having lost half his inventory in Hurricanes

Katrina and Wilma. Demarest described “Sand and Sea Charters” as a “cartoon

name” for the putative purchaser of the boat, and he and Coleman agreed to

provide a “Mickey Mouse” social security number for the corporate documents. In

a different conversation later that day, Demarest confirmed that the owner of the

boat would accept cash at the closing.

On December 13, Coleman and Demarest met at Parrot & Herst, and

7
Coleman paid Demarest $8,000 in cash. Demarest told Coleman that he would

find out what Coast Guard documents would be required at the closing and

whether a “Mickey Mouse” signature would work or a “real body” would be

necessary. Coleman and Demarest agreed to tell the documentation service that the

purchaser did not want to be present at closing.

On December 16, Coleman and Demarest spoke by telephone, and Coleman

provided Demarest the name, address, and social security number of the putative

president of Sand and Sea Charters. The information belonged to Michael Pratt,

another federal agent. Coleman and Demarest arranged to meet the owner of the

boat before closing to pay the balance due on the boat, $155,000. Demarest again

told Coleman that the owner had no idea as to the true source of the money. Three

days later, Coleman and Demarest again spoke by telephone, and Demarest told

Coleman that Pratt’s signature would be required at the closing. Coleman told

Demarest that Pratt was an old school friend and that Coleman would forge the

signature.

Demarest proposed that he and Coleman meet the owner of the boat aboard

the boat to count the cash because he did not “want anybody in the office to see

what’s going on.” Coleman asked whether Demarest would want to participate in

a smuggling trip, and Demarest said that he would “love to” but could not because

8
of his age. Coleman also asked Demarest about Rodda, and Demarest responded

that Rodda did not know anything and was cut out “completely . . . because he’d

figure out this whole thing in a heartbeat.”

Coleman and Demarest met for the last time on December 21, 2005. After

they counted the money with the owner on the boat, the three men drove separately

to the office where the closing occurred. Coleman represented to the closing agent

that Pratt had previously signed the documents, and Demarest told her that he

would not be processing the documents through Parrot & Herst because he did the

deal “as a favor.” After the closing concluded, Coleman paid Demarest a dockage

fee for the boat, and Demarest agreed to watch for other boats that Coleman’s boss

could use to “outrun the cops[.]” Demarest asked whether Coleman did “one-time

runs” or “multiples.”

On January 9, 2005, Coleman and Demarest spoke over the phone.

Demarest told Coleman that the Coast Guard had rejected the social security

number of the president of the corporation that purchased the boat and that

Coleman needed to provide a “good” number that matched Pratt’s name. When

Coleman called Demarest with a number, Demarest told Coleman that he had

located a gold-plated yacht that would be perfect for Coleman.

In June 2007, Demarest was indicted for three counts of money laundering.

9
The first two counts charged that Demarest laundered funds, 18 U.S.C. §

1956(a)(3)(A),(B), when he accepted the down payment of $18,000 on November

21, 2005, and the balance payment of $155,000 on December 21, 2005. The third

count charged that Demarest laundered funds, id. § 1956(a)(3)(A)–(C), when he

accepted the payment of $8,000 on December 13, 2005. Demarest was arrested in

July 2007. After he watched clips from the videotapes of his meetings with

Coleman, Demarest stated that he was obviously guilty. In his post-arrest

statement, Demarest stated that he was not under the influence of alcohol at that

time.

Demarest raised two defenses at trial: intoxication and entrapment. His

voluntary intoxication defense was that he had an alcohol dependency that was

exacerbated by business difficulties following Hurricane Wilma and that his

drunkenness precluded the formation of the specific intent necessary to launder

money. At trial, a friend of Demarest’s and Demarest’s wife both testified that

Demarest is an alcoholic. Neither the friend nor the wife had ever seen Demarest

conduct a business transaction or seen Demarest on the dates of the crimes with

which he was charged. Demarest’s wife also testified that Demarest’s alcoholism

was particularly bad after Hurricane Wilma, when he lost much of his inventory.

Demarest testified on his own behalf. He stated that he drank every day in

10
2005. Demarest testified that when Coleman approached him about the purchase

of the sailboat, Demarest had no money and debts to pay. Demarest stated that he

was very drunk during his first and last meetings with Coleman and that his

statements to the agents about previous experiences in drug trafficking were lies.

Demarest admitted to participating in one drug run with Rodda in the early 1980s

but stated that he did not know that he was participating in a drug run when the trip

began. Demarest stated that he was desperate to sell the boat because he needed

his commission to pay his bills and support his mother. Demarest also testified

that he fabricated the story about the other buyer of the boat as a sales tactic.

Finally, Demarest admitted that he advised Coleman to use a phony identification

to complete the transaction, knew that the agents’ purchasing funds could be drug

proceeds, and proposed another deal to Coleman after the closing on the sailboat.

During her cross-examination of Demarest and closing argument, the

prosecutor made four statements to which Demarest’s objections were sustained.

Demarest first objected when the prosecutor asked him during cross-examination

about financial records to support his allegation that he was desperate. Demarest

then objected three times during the closing argument by the prosecutor. Demarest

objected to the following argument about entrapment:

[I]f this case represents to you entrapment, then we would never ever
have a case where entrapment wouldn’t be a defense. If this case

11
 shows inducement, undue pressure by these agents, this case, let’s just
throw away the money laundering statute sting and just go home
because that’s ridiculous. It’s ridiculous to suggest it and its insulting.

He also objected to burden-shifting when the prosecutor argued, “I mean him

saying, ‘I used all the money to pay off bills[,]’ where is the evidence of that?

Where is evidence of that in this case?” Demarest also objected to the following

argument about intoxication:

If intoxication is a defense here . . . then I guess anytime a crime is
committed someone can just say, well, I was intoxicated, so don’t
hold me responsible. I robbed the bank, but I was drunk. I drove
home drunk, but I was drunk, so you can’t arrest me. I was
intoxicated.

Demarest moved for a mistrial based on these arguments, and the district court

denied his motion.

The jury began deliberating at 10:20 a.m. on November 20, 2007. At 9:50

a.m. the next day, the jury submitted a note asking whether it could “ask for mercy

if we decide on a guilty verdict.” At the request of Demarest’s counsel, the district

court referred the jury back to the original instructions. At 10:20 a.m., the jury

stated that it was at an impasse and the district court delivered the pattern Allen

charge. See Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Trial

Instruction 7 (2003). Demarest’s lawyer stated, “Judge Cooke asked me why I

always object to ‘an Allen charge,’ and I said I don’t know. It’s what I have

12
always done. So obviously I will object and ask for a mistrial.” Later that day, the

jury returned its verdict. Demarest was convicted on the second count and

acquitted of the first and third counts.

The presentence investigation report recommended a range of 63 to 78

months of imprisonment. The report included a two-level enhancement because

Demarest was convicted of money laundering under section 1956, United States

Sentencing Guidelines § 2S1.1(b)(2)(B) (Nov. 2008), and a six-level enhancement

because Demarest knew or believed the laundered funds were the proceeds of, or

intended to promote the distribution of, controlled substances, id. § 2S1.1(b)(1)(A).

Demarest challenged the enhancements and requested a downward variance. The

district court overruled Demarest’s objections.

At sentencing, Demarest presented more testimony about his alcoholism,

testimony about other health problems, and an apology. After consideration of the

statutory factors for sentencing, 18 U.S.C. § 3553(a), the district court granted

Demarest’s request for a downward variance from the guideline range and imposed

a sentence of 48 months of imprisonment with three years of supervised release.

II. STANDARDS OF REVIEW

“We review sufficiency of the evidence de novo, viewing the evidence in the

light most favorable to the government and drawing all reasonable inferences and

13
credibility choices in favor of the jury’s verdict.” United States v. Trujillo, 146

F.3d 838, 845 (11th Cir. 1998). “The relevant question in reviewing a sufficiency

of the evidence claim is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation

marks omitted). “We review the district court’s refusal to grant a mistrial for abuse

of discretion.” Id. “Our review of a district court’s decision to give an Allen

charge is limited to evaluating the coercive impact of the charge.” Id. at 846. “We

review the district court’s application of the sentencing guidelines de novo and its

findings of fact for clear error.” United States v. Baker, 432 F.3d 1189, 1253 (11th

Cir. 2005).

III. DISCUSSION

Our discussion of this appeal is divided in four parts. We first discuss the

issues about the evidence supporting Demarest’s conviction; we then discuss

Demarest’s motions for a mistrial; we next discuss the Allen charge; and we then

discuss Demarest’s sentence.

A. The Record Supports Demarest’s Conviction for Money Laundering.

Demarest raises three arguments about the sufficiency of the evidence

supporting his conviction for money laundering, but all the arguments fail.

14
Demarest first argues that he proved that he was intoxicated; he next argues that he

proved that he was entrapped; and he then argues for the first time on appeal that

the evidence underlying his conviction is insufficient under the decisions of the

Supreme Court in Cuellar v. United States, U.S. , 128 S. Ct. 1994 (2008),

and United States v. Santos, U.S. , 128 S. Ct. 2020 (2008). We discuss each

argument in turn.

1. The Jury Reasonably Rejected Demarest’s Intoxication Defense.

Demarest argued that he was so drunk on the day of the closing that he could

not form the specific intent necessary to launder money, but the jury reasonably

concluded that Demarest was not that impaired by alcohol that day. Demarest

appeared lucid to Coleman as they and the owner of the boat counted and divided

the money. Demarest drove from the dock to the closing separately from Coleman

and the owner of the boat. Demarest did not correct Coleman’s lie to the closing

agent that Pratt had previously signed the documents and himself lied that he did

the deal “as a favor.” Demarest seized the opportunity to develop a customer

relationship: he offered to watch for other boats that might suit Coleman’s

trafficking needs and asked about his tactics for trafficking. Demarest’s

cumulative physical and mental efforts on the day of the closing suggest that he

was not so drunk that he did not know and intend what was happening.

15
 The jury also reasonably rejected Demarest’s intoxication defense because

Demarest testified in detail about the transaction. We long ago said that it is

reasonable for a defense lawyer not to pursue a voluntary intoxication defense

when the sworn and detailed recollections of the defendant discredit it, Harich v.

Dugger, 844 F.2d 1464, 1471 (11th Cir. 1988) (en banc), partially abrogated on

other grounds by Romano v. Oklahoma, 512 U.S. 1, 114 S. Ct. 2004 (1994), as

recognized in Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997), so it is

certainly reasonable for a jury to reject that defense in that circumstance.

2. The Jury Reasonably Rejected Demarest’s Entrapment Defense.

Demarest argued that because of his alcoholism and business troubles, he

was “easy prey for overbearing Government agents who presented the financial

situation . . . that they were well aware he could not refuse,” but this defense fails

because the evidence overwhelmingly proved that Demarest was predisposed to

close the illegal deal. “A successful entrapment defense requires two elements: (1)

government inducement of the crime, and (2) lack of predisposition on the part of

the defendant.” United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995). The

defendant bears the burden of proving inducement, but after the defendant offers

proof of inducement, the government must prove beyond a reasonable doubt that

the defendant was predisposed to commit the crime. Id. Demarest’s appeal turns

16
on the predisposition inquiry because the district court instructed the jury that

Demarest had proved inducement and the government had to prove beyond a

reasonable doubt that he was predisposed to launder money.

In Brown, we articulated “guiding principles” for the fact-intensive inquiry

about predisposition and the critical nature of a defendant’s testimony:

Predisposition may be demonstrated simply by a defendant’s ready
commission of the charged crime. A predisposition finding is also
supported by evidence that the defendant was given opportunities to
back out of illegal transactions but failed to do so. . . . [T]he fact-
intensive nature of the entrapment defense often makes jury
consideration of demeanor and credibility evidence a pivotal factor.

Id. at 625 (citations omitted).

The evidence overwhelmingly proved Demarest’s predisposition. Demarest

“read[il]y commi[tted] . . . the charged crime.” Id. Demarest pursued the

transaction even though he knew from the first meeting that the agents were

purchasing the boat with drug proceeds and to run drugs. Demarest took every

opportunity to help the agents conceal their purchase: he suggested a corporate

form with a fictitious president; he instructed the documentation service at the

closing that he did the transaction “as a favor”; and he accepted a cash payment

structured so as to avoid detection by the bank. When Demarest thought that the

deal might have gone stale, he hounded Coleman with voice mails and fibbed that

there was another buyer interested in the boat. Demarest expressed personal

17
interest in participating in the drug runs, and he was so eager to complete the sale

that he told Coleman that he would travel out-of-state to close the deal. Indeed,

this sale was not enough. Demarest told Coleman that he hoped there would be

more and would watch for other boats that might help the group “outrun the cops.”

Demarest had multiple opportunities to back out of the boat deal before he

committed the offense of conviction, which occurred on the day of the closing, the

very last day of the transaction. It is hard to imagine a more enthusiastic money

launderer.

Demarest also testified on his own behalf, and the jury was entitled to find

that he was predisposed to commit the crime based on his demeanor and

credibility. The jury was entitled to disbelieve his testimony that his statements

about his drug trafficking experience were lies and to credit his earlier statements

that he had participated in drug deals with Rodda. Perhaps most importantly, the

jury was entitled to believe Demarest’s testimony that he was desperate, or

predisposed, to close the deal because of dire financial straits.

3. Cuellar and Santos Do Not Support Demarest’s Position.

Demarest also argues that the decisions of the Supreme Court in Cuellar and

Santos suggest that the evidence is insufficient to support his conviction. Because

Demarest raises these arguments for the first time on appeal, we review them only

18
for plain error. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776

(1993). Demarest’s arguments about Cuellar and Santos fail.

Demarest argues that “the Court held [in Santos] that [‘]proceeds[’ was

limited] to ‘profits’ from a criminal operation, and not just receipts, which is what

the agents in the instant case asserted they were obtaining.” He also argues that an

analysis of Cuellar leads to the conclusion that if the transaction was not intended

to conceal the true nature, ownership, or location of the funds, it is not money

laundering. He contends that “the payment [at closing] was not concealed or

structured” and “[t]he sale of the vessel” also was not concealed.

Demarest’s argument about Santos fails. Santos has limited precedential

value. Three parts of Justice Scalia’s four-part opinion are for a plurality of

justices, and those parts do not state a rule for this case. See Santos, 128 S. Ct. at

2022–45. “When a fragmented Court decides a case and no single rationale

explaining the result enjoys the assent of five Justices, ‘the holding of the Court

may be viewed as that position taken by those Members who concurred in the

judgments on the narrowest grounds . . . .’” Marks v. United States, 430 U.S. 188,

193, 97 S. Ct. 990, 993 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15,

96 S. Ct. 2909, 2923 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

The narrow holding in Santos, at most, was that the gross receipts of an unlicensed

19
gambling operation were not “proceeds” under section 1956, but there is no

evidence that the funds Demarest laundered were gross receipts of an illegal

gambling operation. The evidence instead established that the laundered funds

were the proceeds of an enterprise engaged in illegal drug trafficking.

Demarest’s argument about Cuellar also fails. Cuellar involved a different

statute than the one under which Demarest was convicted. Cuellar considered

whether the government may prove a design to conceal or disguise the nature,

location, source, ownership, or control of the proceeds of a specified unlawful

activity by proving that a defendant concealed the proceeds during their

transportation across the border. See 128 S. Ct. at 2002–06. Although the statute

under which Demarest was convicted does not mention a “design to conceal or

disguise[,]” one subsection of that statute requires the government to prove “intent

. . . to conceal.” 18 U.S.C. § 1956(a)(3)(B). Even if Cuellar applies to Demarest’s

conviction under that subsection, it has no impact on his conviction under clause

(A) of subsection (3) for laundering money “with the intent . . . to promote the

carrying on of specified unlawful activity.” Id. § 1956(a)(3)(A) (emphasis added).

B. The District Court Did Not Abuse Its Discretion When It Denied Demarest’s
Motions for a Mistrial.

Demarest argues that the district court abused its discretion when it denied

his motions for a mistrial based on prosecutorial misconduct, but this argument

20
fails. In reviewing the claim of prosecutorial misconduct, we assess (1) “whether

the challenged statements were improper” and (2), “if so, whether they

prejudicially affected the appellants’ substantial rights.” United States v. Obregon,

893 F.2d 1307, 1310 (11th Cir. 1990). Demarest fails to explain how any of the

arguments he attacks prejudiced him.

Demarest first argues that the prosecutor impermissibly shifted the burden of

proof from the government to him when she asked him during cross-examination

about financial records to support his allegation that he was desperate, but we

disagree. The prosecutor was entitled to cross-examine Demarest after he decided

to testify, and a cross-examination necessarily entails testing the plausibility of a

defendant’s account. See United States v. Garcia-Guizar, 160 F.3d 511, 521–22

(9th Cir. 1998). Demarest also fails to make any argument about how this question

substantially prejudiced him.

The prosecutor also made three improper arguments in closing, but none of

the improper arguments were grounds for a mistrial. Demarest’s objections to the

prosecutor’s improper arguments about entrapment, intoxication, and burden-

shifting were all sustained and requests for curative instructions were granted, but

Demarest failed to establish that any of these improper arguments substantially

prejudiced him. The jury instead acquitted Demarest on two of three charges. The

21
district court did not abuse its discretion when it denied Demarest’s motion for a

mistrial. See Obregon, 893 F.2d at 1310.

C. The Allen Charge Was Not Coercive.

Demarest argues that the jury wanted to show mercy and the pattern Allen

charge “obviously intimidated jurors to reach a compromise, inconsistent

verdict[,]” but this argument fails. We have explained that the pattern Allen charge

is not coercive because it “specifically requests that ‘no juror is expected to give up

an honest belief he or she may have as to the weight or effect of the evidence[,]’”

Trujillo, 146 F.3d at 846–47 (footnote omitted), and the split verdict at Demarest’s

trial does not establish that the charge was coercive to these jurors. Viewed in the

light of the inquiry by the jury about whether it could show mercy, the acquittals

appear motivated by leniency, not intimidation. The Allen charge was not error.

D. The District Court Did Not Err When It Enhanced Demarest’s Sentence.

Demarest’s remaining arguments pertain to the enhancement of his sentence.

He raises two objections. Both fail.

Demarest first argues that the district court double counted when it enhanced

his sentence by two levels because he was convicted under section 1956, but that

enhancement does not constitute impermissible double counting. “Impermissible

double counting occurs only when one part of the Guidelines is applied to increase

22
a defendant’s punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” United States v.

Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999) (internal quotation marks

omitted). “Double counting a factor during sentencing is permitted if the

Sentencing Commission . . . intended that result and each guideline section in

question concerns conceptually separate notions relating to sentencing.” United

States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995) (per curiam). The two-

level enhancement was not impermissible double-counting because Demarest’s

violation of section 1956 was not factored into his base offense level. The base

offense level for money laundering does not distinguish between the various

money-laundering statutes, see U.S.S.G. § 2S1.1(a) (covering violations of 18

U.S.C. §§ 1956, 1957, 1960), but the enhancements do, see id. § 2S1.1(b)(2)(A)

(applying a one-level enhancement for violation of 18 U.S.C. § 1957); id. §

2S1.1(b)(2)(B) (applying a two-level enhancement for violation of 18 U.S.C. §

1956).

Demarest next argues that the district court erred when it applied a six-level

enhancement because he knew or believed that the funds were the proceeds of or

intended to promote the distribution of controlled substances, but this argument

also fails. Demarest argues that “his activity did not fall within the ambit of this

23
enhancement, particularly again in light of Santos . . . and Cuellar[,]” but he says

nothing about his belief that the agents’ purchase money was drug money or that

their purpose was to smuggle drugs. Demarest’s statements during the meetings

about the sale and his testimony at trial proved that he believed the laundered funds

were the proceeds of or intended to promote the distribution of illegal drugs.

IV. CONCLUSION

Demarest’s conviction and sentence are AFFIRMED.

24